Tuesday, November 20, 2007

Supreme Court to Hear Gun Case

So the Supreme Court has finally granted cert in a gun case. They are going to review the Parker decision from DC which was the first federal appeals court to find a private right of ownership in the 2nd Amendment (a 5th Circuit case had expressed similar sentiments, but that was dicta, i.e., not binding precedent).

The historical origins of the 2nd Amendment are not conclusive on this question, but it is a logical leap to an individual right. Firearms in a pre-Industrial Revolution America were made by hand by skilled craftsmen and were quite expensive. While small ironworks existed in the colonies, British mercantile policies prohibited large-scale manufacturing and iron production, increasing costs of finished products.

For example, individual rights advocates fondly quote Patrick Henry with well-placed ellipses, as he states "the great object is that every man be armed...every one who is able may have a gun." Unfortunately, the excised portion reveals that Henry, arguing AGAINST constitutional ratification, is referring to the STATE purchasing weapons for militia use: "The great object is that every man be armed.--but can the people to afford to pay for double sets of arms? Every one who is able may have a gun. But have we not learned by experience, that necessary as it is to have arms, and though our assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed?"

The description of the "Magazine" at colonial Williamsburg states that "The night of April 20, 1775, Lieutenant Henry Collins stole toward the capital with a squad of royal marines from the H.M.S. Magdalen anchored in Burwell's Bay on the James River. Their orders, straight from Governor Dunmore, were to empty the arsenal and disable THE MUSKETS stored there. In 1715, the magazine "safeguarded shot, powder, flints, tents, tools, swords, pikes, canteens, cooking utensils, and as many as 3,000 Brown Bess flintlocks--equipment needed for defense against Indians, slave revolts, local riots, and pirate raids."

The Articles of Confederation, the predecessor to the constitution, provided that "every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of [field] pieces and tents, and a proper quantity of arms, ammunition and camp equipage." If the NRA myth of an armed America in its infancy is true, why did arms need to be provided and stored in public? The articles are clearly referring to personal arms, as they separately mention field pieces. Why are the accounts of the Revolution replete with Continental soldiers lacking muskets?

There is no doubt that in republican (small "r") revolutionary ideology that there was a mistrust of the European experience and standing peacetime armies. That hostility is found in the Articles, with their reliance on the militia. It is apparent, though, that that mistrust has faded into practicality by the time constitution-making rolled around. Congress is authorized to raise armies and navies, and control of the militias is placed within the federal government. The one concession to revolutionary ideology was the provision that "no Appropriation of Money to that Use shall be for a longer Term than two Years." This restriction applies only to the army, not the navy, because armies were the instruments of mischief [Note to congressional Democrats, the framers INTENDED for you to cut the money if the president was an idiot.]

The 2nd Amendment, therefore, was obsolete before ratification. It was a bone tossed to the anti-Federalists about preserving their precious militias after the federalist vision of a central government backed by a regular army became firmly entrenched. The militia in post-revolutionary America was never a significant factor.

Two issues often brought up by the individual rights crowd are 1) the Federalist Papers and other literature of the period and 2) arms as a check on tyranny. Both can be easily dispensed with.

The Federalist Papers were essays in support of a constitution that included no 2nd Amendment language. Madison's version of the text clearly referred to militia purpose, and Hamilton thought a Bill of Rights was dangerous. In terms of a check on tyranny--the constitution clearly defines treason, and allows for that very militia to suppress such criminality. Remember also that the constitution was drafted by and for aristocrats. It contains no right to vote, think the propertied actually envisioned mobs of armed rabble about the countryside?

So in this case--I would love to know who voted to hear it. It takes four justices to hear a case (legal term, to grant certiorari) Is it our new conservative group, wanting to take a stand, or the liberal 4 thinking that they can now kill this? And what kind of opinion will they craft? Once again, it comes down to Justice Kennedy, it will be interesting!


Peter said...

Two notes on the gun case:

This is a SECOND AMENDMENT case involving federal law. SO, no matter what happens, it won't apply to state laws (the 2nd has never been incorporated against the states via the 14th. I can explain that if needed, but it would bore the hell out of you) and

I often think the wrong question here is asked. The question is not "to whom does the right belong" but rather "what is the scope of the `right', i.e., what does `keep and bear' mean?"

jimbow8 said...

I saw this story the other day and thought of your previous enlightening posts. I'm obviously not as well versed legally on this issue as you, and I may even disagree to an extent, but I can't wait to see how this turns out and read your comments about it.

Interesting, indeed.

Laci the Chinese Crested said...

A very good post.